A version of this post was originally published as an editorial in The Copyright & New Media Law Newsletter. In light of the amendments to the Canadian Copyright Act in 2012 and the possibility of the next great new U.S. Copyright Act, this editorial has been updated and revised.
Copyright Reform: Amending Copyright Acts and Treaties
To amend or to overhaul – that is the question when it comes to reforming copyright legislation. Whether an international instrument such as a treaty, or a domestic copyright statute, copyright legislation is continuously being amended to deal with new technology, new rights and the ways we use content. From the examples below you can see for yourself when laws are amended and when they are replaced by new instruments.
The leading international copyright treaty, the Berne Convention for the Protection of Literary and Artistic Works was concluded in 1886. This was the first international copyright treaty. Its purpose was to provide creators with the right to control and receive payment for the use of works such as novels, poems, plays, songs, drawings, paintings and sculptures. Rather than being overhauled and replaced to address newer uses of copyright-protected works and to recognize new rights, the Berne Convention has been revised a number of times. 1908 marks the first major revision to the Berne Convention, with revisions in 1928, 1948, 1967 and most recently in 1971. These revisions reflect newer technologies such as sound recordings, photography, radio, cinematography and television.
The WIPO Copyright Treaty (WCT) is a relatively new copyright treaty. Although concluded in 1996, the WCT came into force in 2002. The WCT updates and supplements the Berne Convention and addresses changes in the digital world including the distribution of digital works over the internet that are not adequately addressed by the Berne Convention. The WCT updates the Berne Convention without amending Berne or replacing Berne. Any state that adheres to the WCT must comply with the substantive provisions of the 1971 (Paris) Act of the Berne Convention, even if it is not bound by the Berne Convention.
The first copyright statute in the world was the British Statute of Anne, 1710. Prior to the Statute of Anne, disputes arising from rights to the publishing of books were enforced by common law. The U.K. Copyright Act 1911 was the first time provisions on copyright were brought together into one Act in the U.K. This Act was replaced by the Copyright Act 1956, which has since been replaced by U.K.’s current copyright statute, the Copyright Designs and Patent Act 1988.
The first and current Canadian Copyright Act was written in 1921 (based on the U.K. Copyright Act 1911) and came into force in 1924. The first major modernization amendments were in 1988 which included enhanced moral rights, an exhibition right for artistic works, and provisions to allow for the collective management of copyright beyond performing rights. The next major reform was in 1997 which introduced neighboring rights protection for performers and producers of sound recordings, statutory damages, a private copying regime, and for the first time, limited exceptions for libraries, archives and museums as well as educational institutions. Major amendments to the Canadian Copyright Act via the Copyright Modernization Act became effective in November 2012. Much of these amendments relate to newer technology and the way we now use content.
The first copyright law enacted under the U.S. Constitution with the provision “to secure to literary authors their copyrights for a limited time” was in 1790. The duration of copyright protection was 14 years with the privilege of renewal for an additional 14 years. The first general revision (i.e., overhaul) of the copyright law was in 1831 when the first term of copyright was extended to 28 years with the privilege of renewal for the term of 14 years. The second general revision of the copyright law was in 1870. The third general revision of the copyright law was in 1909 when the renewal term was extended from 14 to 28 years, with the possibility of renewal for an additional 28 years. The fourth general revision of the copyright law was in 1976-the duration of copyright became 50 years after an author’s death without any renewal of copyright. In 1998 the Sonny Bono Copyright Term Extension Act extended the duration of copyright to life of the author plus 70 years after his death. In April 2013, Bob Goodlatte announced that the Judiciary Committee will conduct a comprehensive review of the U.S. law over the upcoming months. Bob Goodlatte is Chairman of the Committee on the Judiciary in the U.S. House of Representatives.